There’s a point to making the government jump through these hoops: By demanding transparency and facilitating public participation and judicial review, we can be more confident that the bureaucracy is up to good rather than ill.

The trick is that the Administrative Procedure Act contains an exception for nonbinding “general statements of policy.” If the agency isn’t announcing new requirements, but merely offering general guidelines or clarifying what the law already requires, then no procedures are needed. The government can simply post the new policy statement. But it really must be nonbinding; if an agency announces a policy it claims is nonbinding, but treats it as binding in the real world, courts will not allow its enforcement.

Gersen also echoes FIRE’s concerns that the guidance all but requires that schools dispense with due process, telling them to investigate sexual assault claims using a much lower standard of proof than would be required in a criminal court (“a fraction of a percent more likely to be true than false”) and without even minimal judicial protections for the accused, such as the right to hire counsel, to hear evidence against them, and to cross-examine their accuser.

Gersen explains why this kind of enforcement is not just problematic, but illegal:

With this method, the agency has achieved complete adherence to its desired policy, without that pesky and time-consuming public input and litigation. The regulated schools are not so insulated. Many now face lawsuits from students disciplined under the new procedures. Courts are taking these claims seriously. Not our fault, the Education Department might say. After all, that letter wasn’t legally binding.

This kind of policy-making process—or, rather, policy-making without process—is unlawful and wrong. The country ought to be embarrassed when officials who make law exempt themselves from legal requirements, as they too often do. The Fifth Circuit Court of Appeals concluded that President Obama’s immigration policies were likely issued without the right administrative process. Now that the Supreme Court has taken up the case, we will find out if the justices agree.